Update on radioactive frack wastes in Michigan

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Numerous trucks went in and out of the Michigan Disposal facility in Belleville when we picketed for 9 hours on August 21. Several of the loads were these "roll off containers" similar to the ones used for radioactive frack sludge. Photo by LuAnne Kozma.

by LuAnne Kozma

Election-year politics seems to have intervened temporarily with the radioactive frack wastes from Washington County, Pennsylvania (where the wastes remain).  Governor Rick Snyder announced on August 25 that he is creating a panel to “review disposal standards” of the state’s radioactive waste. Additionally the company taking in the radioactive materials from Pennsylvania said it would temporarily suspend additional shipments until the panel’s review is complete.

MLive noted Michigan DEQ spokesperson Brad Wurfel’s prediction that “the review panel will conclude that existing Michigan standards are appropriate.” Wurfel’s admission that this is a charade is quite bald.

For his part, Democratic challenger Mark Schauer, who never mentions fracking whatsoever, opportunistically stated on his website that only out-of-state radioactive waste is his issue: “We can’t allow Michigan to be a dumping ground for radioactive waste that other states won’t allow in their own landfills.” Which is partly good, and of course it’s politically correct to not like radioactive waste, except that he doesn’t cover radioactive frack waste created locally.

Tonight in Van Buren Township: presentation by Wayne Disposal to calm people’s fears about the radioactive wastes in their backyards

The Belleville Independent reports that tonight, September 2, the director of the landfill, Wayne Disposal, will make a presentation at the Van Buren Township meeting and answer questions.  The public has to put the questions on cards. Township supervisor Linda Combs told the newspaper radioactive shipments from frack wastes were announced October 1, 2014 after public hearings and EPA approval. The local paper reported earlier this year that the landfill’s liner had ripped. In two articles about the torn liner, dated January 2  and February 7, it reported that Wayne Disposal does not take in radioactive waste.

What’s in radioactive frack sludge, anyway?

Here’s one study of the stuff:

Rich AL and Crosby EC, “Analysis of reserve pit sludge from unconventional natural gas hydraulic fracturing and drilling operations for the presence of technically enhanced naturally occurring radioactive material (TENORM),” New Solut. 2013;23(1):117-35. doi: 10.2190/NS.23.1.h.

Michigan frackers are producing frack wastes and it’s not tested for radioactivity

Back in 2011 we tried to get more information from the Michigan DEQ regarding the frack wastes that were being created by Michigan’s impending frack industry. We were told in a series of emails from MDEQ’s Paul Jankowski that “there are no rules requiring an oil/gas field waste disposal well to test for radioactivity.”  In this series of questions, we got the following answers:

BMF: Does this mean there is no rule requiring disposal well operators to test material for radioactivity before disposing of it into the well?

Jankowski: Correct.

BMF: And is there also no rule requiring that gas wells test flowback before sending it to a disposal well?

Jankowski: Correct.

On Michigan drilling permits, the operator states if there is a “reserve pit” and whether the materials will be “solidified on site.”   If there is a landfill where the materials are to be brought, the landfill is sometimes named.

For reference: Michigan Disposal Inc’s website, with permits

Media articles about the radioactive frack sludge:

Matheny, Keith, “Michigan landfill operator suspends receipt of low-level radioactive waste,” Detroit Free Press, August 25, 2014.

Ortzman, Rosemary, “Wayne Disposal official to bring information to Sept 2 VBT board meeting,” Belleville Independent, August 28, 2014.

Smith, Heather, “Frackers are sending sludge to the mitten state,” Grist, August 19, 2014.

 

 

 

 

Michigan reacts, and the documents behind the radioactive frack sludge waste saga

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by LuAnne Kozma, Ban Michigan Fracking

Six days after our story was posted, alerting the public about the radioactive sludge heading to Michigan, the Detroit Free Press blasted their own story, “Michigan Takes in Radioactive Sludge” on the front page on August 19, causing a statewide wake-up call.

House and senate democrats sent out emails about the issue with links to the article, asking for money for the upcoming elections, and a Republican state senator got press saying he’d introduce a bill to make “the same tough standards of other states” like Ohio. (More on that in a future post. Ohio did not make tougher standards, they took drill cuttings out of the definition of TENORM!)

Today’s Detroit Free Press ran this cartoon by cartoonist Mike Thompson, “Radioactive Sludge in Your Backyard”:  http://www.freep.com/apps/pbcs.dll/article?AID=2014308230020

And volunteers with Committee to Ban Fracking in Michigan, Ban Michigan Fracking and others joined in a demonstration outside the facility on Thursday, Aug 21 for nine hours to bring attention to the pending shipment.

Committee to Ban Fracking in Michigan at the radioactive frack waste disposal site in Belleville, Michigan, August 21, 2014.

Ballot initiative would ban this waste, statewide

The Committee to Ban Fracking in Michigan‘s ballot initiative would put an end to frack wastes being processed, disposed, or stored in the state. The Committee’s volunteers have been trying to ban frack wastes for the past two years. This year the Committee is collecting contributions and volunteers in order to obtain signatures next year for placing on the ballot in 2016. See the Committee’s new 4-page brochure detailing the many harms of fracking and how ballot initiative works.

In the meantime, a radioactive liner from Pennsylvania was also approved by DEQ for processing and disposal in Michigan.

Documents obtained by Ban Michigan Fracking on August 19 through a Freedom of Information Act request filed last week, show that a radioactive liner was approved on August 18 by the Michigan Department of Environmental Quality for processing and disposal at the same Belleville waste facility, in addition to the two roll-out containers of radioactive TENORM frack sludge from Washington County. Ban Michigan Fracking obtained six email exchanges between the Michigan DEQ and the EQ/US Ecology disposal facility (also called Michigan Disposal Inc and Wayne Disposal Inc, owned by EQ and recently purchased by US Ecology) in Michigan requesting to process and dispose of the Pennsylvania frack waste, the DEQ giving approval, and several lab reports sampling the radioactive materials.

Posted at the bottom of this article are the documents we obtained from the DEQ.

The liner is identified as coming from “the MCC site” and that the “Range Resource MCC site approvals we just completed generated a box of liner.” Other emails and attached lab reports are for samples taken for “MCC Partners.”

On the Pennsylvania Department of Environmental Protection’s website oil and gas searchable database called “eFacts,” a search turned up the following five well sites and one pipeline with the name “MCC Partners” which appear to share the same address as Range Resources.

BURKETT WELLS TO MCC PARTNERS PIPELINE (770971)Jefferson Township, Washington Active Water Planning and Conservation
MCC PARTNERS (WEST) UNIT 10H (772460)
3000 TOWN CENTER BLVD
CANONSBURG, PA  15317
Jefferson Township, Washington
Active Oil & Gas
MCC PARTNERS (WEST) UNIT 10H (772460)
3000 TOWN CENTER BLVD
CANONSBURG, PA  15317-5839
Jefferson Township, Washington
Active Oil & Gas
MCC PARTNERS (WEST) UNIT 11H (772461)
3000 TOWN CENTER BLVD
CANONSBURG, PA  15317
Jefferson Township, Washington
Active Oil & Gas
MCC PARTNERS (WEST) UNIT 7H (770612)
3000 TOWN CENTER BLVD
CANONSBURG, PA  15317
Jefferson Township, Washington
Active Oil & Gas
MCC PARTNERS (WEST) UNIT 8H (773836)
3000 TOWN CENTER BLVD
CANONSBURG, PA  15317
Jefferson Township, Washington

A map of the 808 frack sites in Washington County, Pennsylvania can be found here.

In an email to the Michigan DEQ on August 14 requesting the permission to process the liner, a Michigan Disposal Inc./US Ecology company representative in Belleville, Sylwia Chrostowski, states “MDI  [Michigan Disposal Inc.] proposes to manage the liner in its treatment tanks the same way that MDI has managed the TENORM sludge.” She then goes on to describe the dilution or “downblending” process they would employ, breaking the material up into smaller portions, mixing it with other materials to make the concentration of each portion less radioactive. First the pit liner would be cut up into 4 ft x 4 ft sheets. “If the liner tears and cannot be transferred in whole 4′ x 4′ sheets” the company’s back up plan is to gather up the liner using an excavator (bulldozer) and load it into a blending tank at Michigan Disposal Inc. one bucketful at a time.

After downblending, the material would be disposed at the company’s sister disposal site at the same location called Wayne Disposal Inc. Chrostowski states the “size of the liner makes it difficult to sample.” The level of Radium 226 in the liner was measured at 901 pCi/g. The limit for putting into Michigan landfills is 50 pCi/g, for a given container. Materials identified as coming from Range’s Cowden drill pads of “flowback solids” was measured at 570 pCi/g. The 901 pCi/g and 570 pCi/g loads will be traveling on Michigan highways to Belleville.

We don’t know yet how big this liner box is, or where it is currently located. To the best of our knowledge, the two roll-off containers containing the radioactive sludge are still in Pennsylvania on the Carter frack waste impoundment. Those approvals and requests for processing are also indicated in the email exchanges. The radioactive sludge is from a drilling site or sites by the name of Cowden.

The shipment(s) from Pennsylvania, the liner with all of its radioactive components, and the TENORM radioactive sludge still will land in the landfill facility in Belleville in its entirety when all is said and done. It will just be dismembered into smaller pieces mixed in with other stuff.

Protest at the frack waste facility in Belleville and a greeting by the company’s top brass

Soon after Committee to Ban Fracking in Michigan arrived at the protest site, a staffer named Joe Weismann, in a blue US Ecology logo shirt, drove out of the facility to talk to us.  He explained that they “take in hazardous material and make it non-hazardous” and that the facility is permitted by both the EPA and the MDEQ. He would not tell us when the truck shipment would arrive because the company keeps information about their clients private. He did not allow us to record him, nor did he have a card or give his contact information. Weismann, as it turns out, was not a security guard. He is vice president of radiological and field services at US Ecology, headquartered in Idaho, their top radiation guy.

How DEQ approves these shipments

DEQ’s Radiological Division chief, Ken Yale, explained in an email on Aug 19: “As background information on how the approval process works:  the Radiological Protection Section (RPS) of the Michigan Department of Environmental Quality (MDEQ) typically gets an email from Wayne/Michigan Disposal that details a particular shipment they would like to accept for down blending. To show the concentration of Technologically Enhanced Naturally Occurring Radioactive Material (TENORM) in the proposed shipment, they include a lab report from an independent lab. If the concentration of TENORM exceeds 50 picocuries/gram radium-226, Wayne/Michigan Disposal request permission to mix the material with inert material until the concentration is below 50 picocuries/gram radium-226. The RPS reviews the lab report and the blending calculations to provide an independent analysis. Once we are satisfied the analysis and calculations are acceptable, we will send an email indicating our approval of the blending process. Once the material is mixed to a concentration below 50 picocuries/gram radium-226, it is below the acceptance limit for any Michigan landfill, but it is placed in Wayne Disposal which is a hazardous waste landfill.”

Michigan DEQ’s Yale said in a phone call the liner is from a container of some kind, not an impoundment or frack drilling pad. US Ecology’s Joe Wiesmann’s answer at the disposal site during the demonstration was that it is from a frack pit liner and that the company regularly takes in such liners from frack sites, explaining how the liners are portable and re-used.

Connecticut bans frack wastes for 3 years

On August 19 the New Haven Register reported that the governor of Connecticut signed a bill banning for 3 years the storage and handling of frack wastes. The state senate passed it unanimously and the house overwhelmingly. New Jersey legislators similarly passed a bill this summer that governor Chris Christie vetoed. An Asbury Park Press (NJ) editorial today “Lawmakers, show backbone on veto” hopes lawmakers override his veto but are afraid they won’t. The editorial mentions the radioactive frack waste story in Michigan.

We don’t want “regulation” of frack wastes, allowing it under certain conditions. We want it banned outright. Anyone who is against frack waste must also be against the activity that creates it–fracking.

Contents of the Freedom of Information Act Request obtained by Ban Michigan Fracking from the DEQ:

Email 1: “Range Cowden” dated August 5, 2014: Chrostowski to Mich DEQ’s Skowronek, requesting to process wastes with Ra-226 at 570 pCi/g

Email 2: “RE Range Cowden” dated August 7, 2014: Chrostowski to Mich DEQ’s Skowronek asking again for review of request of August 5

Email 3: “MCC Flowback Solids” dated August 8, 2014: Chrostowski to Mich DEQ’s Skowronek asking for approval to blend Marcellus Shale flowback solids, some of which are at 901 pCi/g.

Email 4: “RE Range Cowden” dated August 11, 2014: DEQ’s Skowronek to Chrostowski granting permission to process and dispose of the Range Cowden materials requested on Aug 5.

Email 5: “RE MCC Flowback Solids” dated August 11, 2014: DEQ’s Skowonek to Chrostowski granting permission to process and dispose of the MCC Flowback Solids reqeusted on Aug 8.

Email 6: “RE MCC Partners Liner” dated August 18, 2014: DEQ’s David Asselin to Chrostowski granting permission to process and dispose of the liner, and the original request asking for permission to process the liner.

Lab reports:

Cowden report

MCC Partners report

 

 

 

Radioactive frack waste headed to Michigan from Pennsylvania’s Marcellus shale

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Update 8/17/14: Michigan DEQ tells us that it approved the application for shipment. We are awaiting word as to when the shipment will occur.
Pennsylvania frack operator Range Resources plans to ship radioactive drilling sludge from Marcellus shale frack operations in southwest Pennsylvania to Michigan, according to a PA news site, the Observer-Reporter. Ban Michigan Fracking contacted the Pennsylvania Department of Environmental Protection today and confirmed the shipment is imminent. Pennsylvania DEP spokesman John Poister confirmed that he is just waiting to hear exactly when the shipment will take place, but he expects it to be in a matter of a day or two.

According to the article, “two roll-off boxes holding waste with detectable levels of radiation at a Marcellus Shale impoundment in Mt. Pleasant Township will soon be trucked to Michigan for disposal.” (“Drilling Sludge to be shipped to Michigan” observer-reporter.com, August 13, 2014). The township is located in Washington County, just outside of Pittsburgh. DEP’s Poister is quoted as saying the shipment is a “great deal of material” and cannot legally be deposited in Pennsylvania’s landfill.

So where in Michigan is it heading?

Ken Yale, the division chief of the Radiological Protection division of the Michigan Department of Environmental Quality, who we spoke to today, said he wasn’t aware of “any new shipment” and that the likely depository is the Wayne Disposal Inc. site, a hazardous waste facility in Van Buren Township in Wayne County, near the Willow Run airport. Unfortunately for Michigan, it is one of two landfills in the nation that will accept such waste. The second one is in Idaho.

The Wayne Disposal/Michigan Disposal site in Belleville, Michigan that takes radioactive wastes from frack sites for processing and disposal. Photo © Ban Michigan Fracking.

The DEQ staffer in the Radiological Protection Division who makes such decisions, Bob Skowronek, contacted BMF on his day off to let us know he is checking into it with the disposal facility.

The material in question has been in limbo for some months now. After landfills in Pennsylvania rejected the waste, Range Resources tried to “quietly” ship the material to a West Virginia landfill which also rejected the material for its high radioactivity, according to a June report by Desmogblog   (“Loopholes enable industry to evade rules on dumping radioactive fracking waste.”). A May news report by the Pittsburgh Post-Gazette about the situation stated that in the first four months of 2014 “nine loads of shale gas drilling waste had been rejected by Pennsylvania landfills because of higher-than-normal radioactivity.” One of the nine shipments is this material at Range Resources’ “Carter impoundment.” Desmogblog reported that the material amounted to 12 tons of radioactive frack wastes.

Yale of the Michigan DEQ said there have been other shipments of similar materials to the Wayne Disposal Inc. site from other states. Skowronek, the DEQ staffer who approves such shipments, explained that there are two facilities in Michigan that process such radioactive materials. One is US Ecology Michigan, which is authorized to take in radioactive materials (above 50 pico curies) and solidify them for shipment to the Idaho facility, without any prior notification to the MDEQ. Apparently this waste is readily coming into Michigan on a regular basis. The other facility is actually a set of facilities, Wayne Disposal Inc, (the landfill site) and Michigan Disposal Inc, which can take in Radium 226-materials above 50 pico curies per gram and process it to dilute it/combine it with other materials to bring down its level, enabling the waste to be disposed of in the Wayne Disposal Inc landfill. (Both Michigan Disposal Inc. and Wayne Disposal Inc. have been purchased by US Ecology).

We will update this story as we learn more information.

Updated 8/13/14 at 11 pm. Updated 8/17/14.
Correction: an earlier version of this story indicated that Mt. Pleasant Township is in Montgomery county. The correct location is Washington County, PA. 

See also:

Pittsburgh Post-Gazette: “Two more drilling sites found with Marcellus Shale sludge radioactivity in Washington County: DEP sees no threat.” May 27, 2014. (The comments on this article are also illuminating).

Nuclear Frack Waste Convoys on the website “No Fracking Way”

Freshwater Accountability Project (Ohio)’s report on radioactive frack waste in Ohio, Hydraulic Fracturing Radiological Concerns for Ohio.

An Assessment of the Disposal of Petroleum Industry NORM in NonHazardous Landfills

Pennsylvania’s 2013 Oil and Gas Report

Marcellus Monitor, a blog that has covered some of this story.

New York, Pennsylvania courts uphold township fracking bans; Michigan next?

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Photo credit: Village of Dryden

by Ellis Boal, updated 7/14/04

On June 30 New York state’s highest court held that two rural home-rule towns lying atop the Marcellus shale can ban fracking by zoning.  This, despite a preempting New York statute which says the state oil-gas law

shall supersede all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries….

The court in Matter of Wallach v Town of Dryden carefully noted:

The Towns both studied the issue and acted within their home rule powers in determining that gas drilling would permanently alter and adversely affect the deliberately-cultivated, small-town character of their communities.

Towns in New York are equivalent to townships in Michigan.

HISTORY OF NEW YORK CASE

Five years after a developer began acquiring oil and gas leases in Dryden New York, the town held a public hearing in 2011.  The result was a prohibition on use of land within its borders for oil-gas exploration, extraction, and storage.

The same year the town of Middlefield learned leases had been executed there.  The town board investigated, and decided to zone out oil, gas, and solution mining.  The board reasoned that the area:

is known worldwide for its clean air, clean water, farms, forests, hills, trout streams, scenic viewsheds, historic sites, quaint villages and hamlets, rural lifestyle, recreational activities, sense of history, and history of landscape conservation.

The town board concluded that industrialization, such as hydrofracking, would:

eliminate many of these features [and] irreversibly overwhelm the rural character of the Town.

According to the ruling, New York’s preemption statute governs only the “safety, technical and operational aspects” of oil and gas activities.  The court decided to follow a previous ruling about sand mining which held:

In effect, local laws that purported to regulate the ‘how’ of mining activities and operations were preempted whereas those limiting ‘where’ mining could take place were not….

The court added:

We see no inconsistency between the preservation of local zoning authority and the [state's] policies of preventing “waste” and promoting a “greater ultimate recovery of oil and gas”….

Of great interest, the decision was made without regard for the safety or dangers of the controversial extraction practices that sparked fierce opposition and led to the bans:

These appeals are not about whether hydrofracking is beneficial or detrimental to the economy, environment, or energy needs of New York, and we pass no judgment on its merits.

The 5-2 majority opinion was authored by Judge Victoria Graffeo, viewed generally as liberal.

PENNSYLVANIA DECISION

The decision follows on the heels of a similar decision of the Pennsylvania supreme court last winter in Robinson Township v Pennsylvania, striking down that state’s “Act 13.”

Act 13, put into effect in 2012, allowed wells, pipelines, impoundments, and seismic-testing explosives to take place “of right” in every zoning district, even residential ones.  One section of the law asserted the oil and gas laws “occupy the entire field of regulation, to the exclusion of all local ordinances.”

Six townships and a borough sued.

Four court justices concurred in striking down Act 13, as against three dissenters.  The four did not have unified reasoning.

The 3-justice lead opinion invoked the “public trust” doctrine in the Pennsylvania constitution, which requires all branches of government — including counties and townships — to consider in advance the environmental effect of any proposed action:

The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.

The opinion held Act 13′s preemption provision required local governments instead:

to ignore their obligations under [the constitution] and further direct[ed] municipalities to take affirmative actions to undo existing protections of the environment….

In ringing tones the three-justice opinion added:

[F]ew could seriously dispute how remarkable a revolution is worked by this legislation….  By any responsible account, the exploitation of the Marcellus Shale will produce a detrimental effect on the environment, the people, their children, and future generations and potentially on the public purse, potentially rivaling the environmental effects of coal extraction….  Protection of environmental values, in this respect, is a quintessential local issue….

The one concurring justice’s view was that Act 13′s preemption violated constitutional substantive due process.  He wrote:

I believe that in a state as large and diverse as Pennsylvania, meaningful protection of the acknowledged substantive due process right of an adjoining landowner to quiet enjoyment of his real property can only be carried out at the local level. … [T]hese industrial-like operations include blasting of rock and other material, noise from the running of diesel engines, sometimes nonstop for days, traffic from construction vehicles, tankers, and other heavy-duty machinery, the storage of hazardous materials, constant bright lighting at night, and the potential for life- and property-threatening explosions and gas well blowouts.

The bottom line of all four justices is the same:  Townships and boroughs in Pennsylvania are now free to ban fracking.

IMPLICATIONS FOR LOCAL BANS IN MICHIGAN

Legal commentators in 2012 and 2014, writing without benefit of the New York decision, have concluded that prospects for local frack bans in Michigan are nil or dim.

Reporters in the popular media have said the same, except less carefully. MSU Extension mis-stated the key statute in 2012, and the Detroit News misquoted it in 2014.

I disagree.

Michigan’s oil-gas law is called “Part 615 of the Natural Resources and Environmental Protection Act” or “NREPA Part 615″ or simply “Part 615.”

Statutes, rules, regulations, parts….The overarching Michigan statute governing the environment is the “Natural Resources and Environmental Protection Act” or NREPA. NREPA is divided confusingly into many articles, parts, and sections. In certain of the categories there are divisions, chapters, and subchapters. Some of the sections have subsections and even finer sub-categories.

Oil and gas are dealt with in article III chapter 3, subchapter 2, part 615, often called just “Part 615.” Part 615 has 37 sections and innumerable subsections.

One of the subsections allows the DEQ to “promulgate and enforce rules, issue orders and instructions” for enforcement, and to do anything necessary to “implement” the “subject matter” of Part 615, “whether or not” the subject matter is spelled out in Part 615.

“Rules” (sometimes also called “administrative rules”) are promulgated under Michigan’s Administrative Procedures Act, which requires public hearings and public comment in advance.

The rules are here.

DEQ has announced proposed revisions of the Part 615 rules.

The public hearings for these proposals are set for July 15 and 16 in Gaylord and Lansing. Anyone may attend and speak.

DEQ has other rules for contested case and declaratory ruling hearings. DEQ has proposed to rescind most of these rules. At this writing, a date has not been set for a public hearing.

As noted, the DEQ can also issue “instructions” for enforcing the rules. A listing of all these instructions is here.

In May 2011, two new instructions were issued related to fracking. One is about high volume hydraulic fracturing well completions. The other is about permit application reviews for wells that may be hydraulically fractured.

The term “regulations” has no strict definition in Michigan. Regarding oil and gas, often the term refers colloquially to both Part 615 and the Part 615 rules together.

The Michigan Department of Environmental Quality (MDEQ or DEQ)

has jurisdiction and authority over the administration and enforcement of [Part 615] and all matters relating to the prevention of waste and to the conservation of oil and gas in this state….

In Michigan and most states, usurpation by the state of power to regulate oil and gas activities is called “preemption.”  (In New York the term is “supersession.”)

Under preemption, a Michigan township or county is precluded from enacting an ordinance if it is in direct conflict with a state statutory scheme; and even if there is no direct conflict it is precluded if the state scheme “occup[ies] the field of regulation.”

Every state’s oil-and-gas law is slightly different.  The New York and Pennsylvania decisions do not bind Michigan courts.  But they will be highly influential, albeit in different ways.

The 3-justice lead opinion in Pennsylvania was authored by the court’s chief justice, viewed generally as conservative.

Even so, he sounded a clarion call, echoing the holding of our own Michigan supreme court in 1974.  The 1974 case held that our legislature would have violated the Michigan constitution had it not enacted NREPA for “protecting natural resources from pollution, impairment, and destruction.”  The court added:

But as the state has grown, and the demand for energy, the public interest has been threatened by casual planning of transmission lines and pipelines through unspoiled countryside.

Michigan’s constitution, unlike Pennsylvania’s, does not explicitly enunciate the public trust doctrine. Our state’s analogous provision holds:

The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction.

This provision underscores the common-law public trust doctrine which Michigan and the federal courts have long recognized. But the failure of Michigan convention delegates to put the public trust doctrine in the constitution itself may blunt efforts to apply the three-justice Pennsylvania logic in this state. The concurring justice’s substantive due process theory, as understood in Michigan, might have more success.

SUBSECTION 205(2) OF THE ZONING ENABLING ACT

But the New York court’s approach is simpler.

Michigan’s zoning law is called the Zoning Enabling Act.  In two independent clauses, subsection 205(2) of the act prescribes preemption:

A county or township [1] shall not regulate or control the drilling, completion, or operation of oil or gas wells or other wells drilled for oil or gas exploration purposes and [2] shall not have jurisdiction with reference to the issuance of permits for the location, drilling, completion, operation, or abandonment of such wells.

Note that 205(2) does not claim to preempt bans or regulations by cities and villages.

(205(3) and subsequent subsections of 205 say a local ordinance shall not “prevent the extraction, by mining, of valuable natural resources from any property unless very serious consequences would result…”  But note these subsections apply only to extraction by mining.  Gas and oil are extracted by drillingDrilling and mining are different in Michigan law, governed by mutually exclusive subchapters and parts of NREPA. These subsections do not affect subsection 205(2).)

The restrictions of section 205(2) on counties and townships have to be considered in light of the state constitutional requirement that zoning powers (and all other local powers) are “liberally construed in [the counties' and townships'] favor.”

Describing this requirement in 1961, the year the state constitution was adopted, the convention commented:

Home rule cities and villages already enjoy a broad construction of their powers and it is the intention here to extend to counties and townships within the powers granted to them equivalent latitude in the interpretation of the constitution and statutes.

In section 205(2), by putting the words “location” and “abandonment” in the second clause but omitting them from the first, the Michigan legislature made the same distinction the New York court did: The state governs and preempts only technical rules for how oil-gas operations occur. But it allows counties and townships to “regulate and control” where they occur, ensuring the quiet enjoyment of land without a towering drill rig in the same neighborhood as single-family homes.

State oil-gas regulations do speak of “location” in the sense of providing isolation distances of structures within a surface facility (such as the required separation of a wellhead and a flare), or the separation of operations from roads, watercourses, and sensitive areas. Part 615 also says a well cannot in most cases be within 450 feet of a residential building. Isolation radii for other sensitive areas range up to 2000 feet.

Part 615 also speaks of limiting well locations generally to the “approximate” centers of “drilling units” so as to prevent the unnecessary wells and maximize efficient draining. The default size of a drilling unit is 40 acres.

But these “location” references are technical and quite circumscribed. By contrast, with a single exception involving group child care homes, Michigan zoning designates land via large multi-mile swaths, prescribing uniform regulations for districts designated as residential, agricultural, industrial, commercial, undeveloped, and the like.  Zoning is not about delimited perimeters around a center. And it’s not about efficient draining.

In other words unlike the DEQ, planning commissions and zoning boards take into account the community’s plan and character.  Communities can zone the broad areas where oil and gas operations — and all other industrial operations — may be located or abandoned. But DEQ “permitting” is done individually, well-by-well, with technical instructions specific to each well. As long as counties and townships don’t try to issue such permits they don’t enter a field “occupied” by DEQ.

The character of a township or county has nothing to do with the DEQ’s job anyway, which is “prevention of waste and … the conservation of oil and gas.” There are no references to zoning in Part 615. The only zoning requirements in the DEQ rules apply to residential zones so designated before 1993. Even in an area zoned residential before then, DEQ can hold a hearing and allow a flare over the local government’s objection.

To drive home the rule of non-preemption, in 2006 the Michigan legislature did voluntarily what the Pennsylvania supreme court ordered that state to do for Act 13. Michigan amended section 205(2) by removing explicit preemption language.  Until then, the predecessor of 205(2) had this clause at the end:

The jurisdiction relative to wells shall be vested exclusively in the supervisor of wells of this state.

The language dated from Public Acts 183 and 184 in 1943.

There is a Michigan decision upholding preemption, but it was decided in 1994, 12 years before the 2006 change.  The decision is no longer dispositive.  In any event, it did not concern location or abandonment.

FOSTERING THE INDUSTRY

Similar to New York, one overall purpose of Part 615 is to:

foster the development of the [oil-gas] industry along the most favorable conditions and with a view to the ultimate recovery of the maximum production of these natural products [oil and gas].

This provision, enacted in 1939, was part of a package oil-gas bill.  The Michigan Oil & Gas Association supported it as a “confidence” builder for the industry, according to a newspaper account of the day. It means that every time DEQ regulators make a decision large or small, and every time an issue comes before a judge or jury, they have to be thinking in terms of fostering the industry.

The New York court saw no contradiction between its decision and that state’s very similar policy.

THE INDUSTRY’S ARGUMENT FOR PREEMPTION

Why do Michigan and other states even have preemption statutes?  Preemption’s “sound basis” was explained by the Michigan supreme court in 1989, in the first of two decisions in the same case.  It relied on this factual finding:

Oil and gas are natural resources with fixed locations.  A gas field cannot be moved to a more favorable site.

The second decision in that case in 1990 reaffirmed the reasoning of the first one, and added that a township could “prohibit land use for [an above-ground] processing facility” altogether.

But with the recent advent of horizontal drilling in newly exploited types of rock formations, the “fixed location” fact is no longer actually a fact.

DEQ rules define the “well location” as its “surface location,” not the location of the gas or oil below. The two can be widely different.

In a well with a 2-mile-long horizontal fracking leg, the operator is free from an engineering standpoint to drill into the leg from a surface location at either end.  Other things being equal, no law would stop an operator from locating the surface hole arbitrarily, say, in a township where it had business dealings with officials.

There are in fact several DEQ-permitted frack wells with the ends of the horizontal legs in different townships.  Two wells — State Norwich 1-6 and 3-12 HD1 — were even permitted with the ends in different counties, Kalkaska and Missaukee.

Accordingly no longer can it be said that oil or gas locations are always fixed.  No longer is there always a factually “sound” basis for preemption.

SECTION 207 OF THE ZONING ENABLING ACT

A second section of the Zoning Enabling Act could also be seen as an obstacle to a local frack ban.  Section 207 says:

A zoning ordinance or zoning decision shall not have the effect of totally prohibiting the establishment of a land use within a local unit of government in the presence of a demonstrated need for that land use within either that local unit of government or the surrounding area within the state, unless a location within the local unit of government does not exist where the use may be appropriately located or the use is unlawful.

This section is inapplicable to oil-and-gas drilling. By its wording, the burden of proof of the existence of a “demonstrated need” would be on the operator which seeks to drill for oil or gas.  Unlike gravel and other similar commodities, oil and gas are not sold locally. They are sold on national and international markets.  An operator would not be able to prove that a well it wished to drill in one township would be for the purpose of fulfilling a “demonstrated need” in that township or in one nearby.

As the Michigan Public Service Commission explains it:

Natural gas consumed in Michigan comes from gas and oil fields located primarily in Michigan’s lower peninsula, the Texas-Oklahoma Panhandle, on and off-shore Louisiana, and Alberta, Canada. … Most of Michigan’s gas production is purchased by Michigan utilities for their customers, but some is also sold to gas marketing companies that sell gas outside of Michigan. Natural gas produced in Michigan represents about 15-20% of the total gas consumed in Michigan.

LOCAL UNITS OF MICHIGAN GOVERNMENT CAN BAN FRACKING

As noted, cities and villages in Michigan have long been free to enact local frack bans without controversy or legal obstacles.

There is controversy about counties and townships.  But the logic of the New York and Pennsylvania decisions is compelling here even if not binding, given the similarities of the state laws.

The Michigan supreme court showed itself recently to be friendly to the idea of local control. Legislation later undid that ruling, but only in the context of mining.

A courageous Michigan county or township, willing like Dryden and Middlefield to stand up to the industry and risk litigation, may soon be in the offing.

 


 

Ellis Boal is a lawyer in Charlevoix. Last year he won an injunction against 13 Encana wells in Kalkaska County, three of which in terms of water usage would have been the largest in the US.

 

Support growing for a Michigan fracking ban

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Michigan local leaders’ views on opposing fracking in new poll

A new statewide poll shows that Michigan local government leaders believe that community members and their local boards and commissions are more likely to oppose than support fracking in their communities.

The University of Michigan report (issued this month, with polling last December) indicates increasing statewide skepticism about fracking in Michigan. The Center for Local, State, and Urban Policy (CLOSUP) surveyed local government leaders in the state on issues related to high-volume horizontal fracking in their communities.  Local leaders from 1,353 Michigan counties, cities, townships, and villages were polled.

The Michigan Public Policy Survey estimates about 6% of local jurisdictions currently have  fracking operations or efforts to add them, and 13% of survey respondents said they or their neighbors are somehow affected by it.  Even so, the survey found the issue is an increasingly active topic of conversation.

Where fracking is an active topic, local officials believe that citizens are more likely to oppose (37%) than support (11%) it in their communities. They believe the same about their local councils or boards, 29% saying that their boards oppose fracking compared to 16% who said their boards would support it.

The survey respondents themselves — the chief elected and appointed officials — are more evenly split, with 36% opposing and 31% supporting high-volume horizontal fracking.

There were regional differences, with officials in the Upper Peninsula more supportive of fracking (54% support, 32% opposed), northern Lower Peninsula officials more split (37% support, 35% opposed), and officials in more populated southeast Michigan sharply in opposition to fracking (19% support, and 51% opposed).

Factors that respondents said influenced their decision were risks to water (57%), environmental damage (56%), health risks to citizens (47%), impact on property values (41%) and the influence of community organizations that are active on fracking issues (31%).

The CLOSUP report concludes that, among a range of Michigan energy options, fracking ranks near last in support from local leaders, well behind renewable sources such as solar, hydroelectric, and wind power.

These results back up earlier polling by the Pew Research Center which reported last fall that the more people learn about fracking, the more they oppose it.  Pew conducted polls in March and September 2013 and found a marked increase in Americans opposed to fracking. In September 2013 more Americans (49%) opposed increased use of fracking than favored it (44%), a dramatic change from March 2013 when support for fracking had exceeded opposition by 10 points (48 to 38%). The Midwest showed a similar trend with 32% Midwesterners opposed to fracking in March and rising to 48% opposed by September 2013.

The CLOSUP results are a good sign that advocacy for a ban on fracking and the reasons why fracking is harmful are getting through to more people—those elected and the rest of us.

If you are an elected official and you’d like to know more about fracking and why it’s important to ban the practice, please contact us.

Gasland 2, showing in a town near you

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Ban Michigan Fracking is co-hosting several screenings of the film Gasland 2. The screenings are free and open to the public. Donations to the co-sponsors are appreciated and welcome!

Watch the movie trailer herehttp://www.gaslandthemovie.com/about-the-film

Friday, March 21, Elk Rapids, 6:00 to 8:30 p.m. Historic Elk Rapids Township Hall. Co-sponsored along with Ban Michigan Fracking and Michigan Citizens for Water Conservation.

(Also Friday, March 21, Brighton, 7:00 to 9:30 p.m., the Livingston County Democrats are hosting a screening. Our Committee will be there making an announcement.)

Tuesday, March 25, Mecosta, 6:30 to 8:30 p.m. at the Morton Township Library. Co-sponsored by Michigan Citizens for Water Conservation and Ban Michigan Fracking.

Friday, April 11, Chelsea, from 2:30 to 5:00 p.m. at the Chelsea District Library. Co-sponosred with Ban Michigan Fracking and Michigan Citizens for Water Conservation.

Wednesday, April 23, East Lansing, from 7:00 to 9:30 p.m. at Edgewood United Church of Christ. Co-sponsored by Michigan Citizens for Water Conservation and Ban Michigan Fracking.

Wednesday, April 30, Hastings, from 5:30 to 8:00 p.m. at Hastings Public Library. Doors open at 5:00 p.m. Sponsored by Committee to Ban Fracking in Michigan.

Wednesday, May 14, Battle Creek, from 6:30 to 9:00 p.m. at First Congregational Church, 145 Capital Ave NE, Battle Creek, MI 49017. Co-sponsored by Michigan Citizens for Water Conservation, Committee to Ban Fracking in Michigan, Ban Michigan Fracking and Physicians for Social Responsibility–Michigan Chapter.

See the trailer:

 

Michigan’s oil-gas contribution to air pollution and global warming

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Last year a group of scholars led by Mark Jacobson at Stanford published a  study on the feasibility of converting New York State’s energy infrastructure to one using wind, water, and sunlight. Jacobson is with The Solutions Project, “a group of top scientists, visionary business leaders and cultural influencers with a mission of accelerating the transition to 100% renewable energy.”

The study proposes that New York switch to power produced 10% by onshore wind, 40% offshore wind, 10% concentrated solar, 10% solar-PV plants, 6% residential rooftop PV, 12% commercial/government PV, 5% geothermal, 1% tidal, and 5½% hydroelectric.

Natural gas (methane), touted by industry as a “bridge” fuel to renewable energy and now widely debunked as a “gangplank” off the climate precipice, was excluded as a recommended source for future energy.  Due to the effects of methane and pollutants that cause air pollution, it is not a near-term “low” greenhouse alternative, either in absolute terms or relative to coal.

The study compares the generation and transmission costs of wind, water, and solar (WWS), to those of fossil and nuclear energy sources including their externalities.

Jacobson’s team asserts that a complete transition to WWS would result in no associated environmental externalities.  No externalities in terms of bronchitis, heart disease, or asthma resulting from particulate matter and ozone in the air.  And none in terms of coastline loss, agricultural and fish losses, human heat stress mortality, increases in severe weather, or air pollution, all of which come from global warming.

Externalities are key. The study estimates annually averaged premature mortalities from particulate matter in New York at:  820 (low estimate), 3260 (medium estimate), 6480 (high estimate).  Estimates of premature mortalities from ozone are:  356 (low), 713 (medium), 1070 (high).

Michigan’s frack attack required by law

For 75 years Michigan’s oil and gas industry has enjoyed special-interest protection, written into the state law. The law requires the State to “foster the development of the [oil-gas] industry along the most favorable conditions and with a view to the ultimate recovery of the maximum production of  [oil and gas].” Requiring maximized production as a goal of of DEQ’s Office of Oil, Gas and Minerals means requiring it to maximize Michigan’s contribution to air pollution and global warming.

Fracking for natural gas is not part of our future. Depicted here are the locations for all 53 horizontal frack wells already permitted in Michigan.

The industry is just getting started in Michigan, plunking down exploratory wells throughout the Lower Peninsula, with 53 wells permitted already over the past three years. A network of thousands of wells across the Michigan landscape would change our state–and planet–forever, and not for the better.

Michigan’s contribution to global warming and planetary destruction

What exactly is Michigan’s contribution to the world crisis we now face?  The question will be answered for every state later this week at The Solutions Project website.

But on Monday Jacobson provided Ban Michigan Fracking with a Michigan preview:

  • Current air pollution premature mortalities per year in Michigan: 1600 (range of 530-2940).
  • Current air pollution health costs in Michigan: $14.7 billion/year (range of $4.8-26.7 billion/year).
  • Current health cost as % of state GDP: 3.9% (range of 1.3%-7.2%).
  • Year 2050 costs to the US due to Michigan emissions: $2.1 billion/year.
  • Year 2050 costs to the world due to Michigan emissions: $21.4 billion/year.

A portion of The Solutions Project infographic for the state of Michigan.

On February 14, The Solutions Project went live showing specific roadmaps for every state, including Michigan, to transition all energy sources to wind, water, and solar by 2050 using existing technologies.  Under The Solutions Project plan, fuel costs would drop to zero and healthcare costs and premature air-pollution mortalities would diminish significantly, as detailed for every state.

What are some of the benefits of switching to alternatives?

  • Year 2050 electricity cost savings/year due to converting to WWS in Michigan: $34 billion/year.
  • Year 2050 electricity cost savings/person/year due to converting to WWS in Michigan: $2800 /person/year.
  • Year 2050 total electricity + health + climate cost savings: $69.7 billion/year (range of $59.8-81.7 billion/year).
  • Year 2050 total electricity + health + climate cost savings/person: $5840/person/year (range of $5000-6800/person/year).

Additional information is at: http://www.stanford.edu/group/efmh/jacobson/Articles/I/susenergy2030.html .

The study’s conclusion recommends a number of first steps toward NY’s conversion to WWS, rather than natural gas. The first step in Michigan: Ban horizontal fracking.

Get involved in the Committee to Ban Fracking in Michigan’s ballot initiative campaign, http://letsbanfracking.org . It will end the requirement that Michigan foster the gas industry, and end the state’s horizontal fracking.

The Year in Review in the Ban Fracking Movement in Michigan

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Michigan’s frack industry: now at 53 high-volume frack wells

The People: 70,000 voters sign ballot initiative to ban fracking

By LuAnne Kozma

While the horizontal frack industry in Michigan grew by 23 wells in the past year, and pushed into new areas of the state, residents fought back in ambitious and far-reaching efforts to ban horizontal fracking and frack wastes statewide and a few decisions to curtail it locally.

The industry expanded to southerly counties in the Lower Peninsula. The current totals as of November 25, 2013 are: 53 high-volume, horizontal frack permitted wells in 18 counties: Antrim (1),* Cheboygan (2), Clare (1), Crawford (1), Gladwin (2), Hillsdale (6), Ionia (1), Kalkaska (22), Livingston (1), Midland (1), Missaukee (4), Montmorency (1), Muskegon (1), Oceana (2), Ogemaw (1), Osceola (1), Roscommon (2), Sanilac (3). Five applications are pending in 2 counties: Antrim (2) and Kalkaska (3).

*Antrim's Mancelona 1-28 HD1 frack well fell off the DEQ's list and into a paperwork black hole, its permit "terminated" and no longer considered "active" ... but the site clear-cut in the state forest still exits, the well drilled. Photo by LuAnne Kozma.

DEQ's High-Volume Hydraulic Fracturing Activity Map, dated 11/25/13

High-volume horizontal fracking is new to Michigan, the first wells established in 2010. This basic truth did not deter the Michigan Department of Environmental Quality’s Office of Oil, Gas, and Minerals (which is how we resolve to call the agency from now on) from repeating the bogus mantra that fracking has been going on in Michigan for 60 years and that 12,000 wells have been drilled and fracked. This statement misleadingly refers only to the vertical, conventional wells in the Antrim shale, not the new horizontal wells now being drilled and fracked in the Collingwood/Utica shale and A-1 Carbonate formations.

Thanks to grassroots activists and a few elected officials, the ban fracking movement and public awareness increased in every way. Meetings across the state reached people already interested in the issue.

Ban Michigan Fracking organized people to come to the state capitol in Lansing at the January 2013 state of the state address.

The Committee to Ban Fracking in Michigan the ballot initiative led by members of Ban Michigan Fracking and Michigan Citizens for Water Conservation took the ban fracking message to the streets to where people congregated at festivals, farmers markets, and other events. The Committee collected over 70,000 signatures from Michigan registered voters from all 83 counties, who signed on to ban horizontal fracking and frack wastes—enough people to fill MSU’s Spartan Stadium. The initiative is endorsed by an increasing number of organizations and individuals.

Corinne Turner, activist from Barry County in summer 2013, collecting signatures.

These face-to-face exchanges were conducted primarily by a volunteer force of over 500. Many people learned about the environmental harms of fracking—or even the word “fracking”– for the very first time. This was not an online petition that people could do from their computers or phones.

 

While the required number of signatures was 258,088 during the six-months from April to October, the Committee will begin a new signature-gathering phase when it raises enough funds. (Donate on LetsBanFracking.org) That simple fact—that the DEQ which is thought to “protect the environment” is actually expected to foster and favor the gas and oil industry–is a showstopper. DEQ continues to go around the state with its “Environmental” title while actually it is the Office of Oil, Gas and Minerals doing the talking.

People are also shocked to discover, when it ever is revealed at a public meeting at all, that the Department of Environmental Quality Office of Oil, Gas and Minerals also receives a 6.6% severance tax on oil and a 5% severance tax on gas produced in the state—in effect in business partnership with the oil and gas industry. It is the only part of the state’s environmental protection agency that is funded by the industry it regulates. To our knowledge, no horizontal high-volume frack well permits have ever been denied.

Ban Michigan Fracking learned in January that the 40,000 gallons of frack flowback from Encana's Excelsior wells – approved by the Department of Environmental Quality (DEQ) and spread on northern Michigan roads in 2012 – were much more hazardous than expected. The deadly chemical AI-2 containing a secret ingredient was put in a tourist campground on Lake Huron by the Mackinac Bridge. A separate flowback sample from the same complex tested the materials as radioactive. See entire story here.

In February,  Ban Michigan Fracking broke the blockbuster news (“Michigan’s 21 Million Gallon Frack Job”) that the Michigan frackers were using more water per well than any other frack well in the nation–20 to 30 million gallons, not the “5 to 8 million gallon” figure regularly being used to describe this new kind of fracking. We used actual industry records. The truth won out and the media and the DEQ started using the new numbers.

The approximately 60 horizontal frack wells permitted or pending in Michigan are poised to use as much water to frack than all 12,000 Antrim wells drilled in Michigan over the past decades combined.* Just five of Encana’s new wells are projected to use more than 132 million gallons. When adding up the rest, estimates go past 577 million. (*Assuming 12,000 Antrim wells used 50,000 gallons per well according to DEQ, which totals 600 million gallons of water). Clearly the new type of fracking in Michigan is water intensive beyond anyone’s imagination.

Oakland County Water Commissioner Jim Nash started hosting meetings in communities throughout Oakland on the subject of fracking with speakers from state agencies as well as knowledgeable grassroots anti-frack activists. One speaker, Joe Curry, a 30-year water well driller and member of the Michigan Groundwater Association from Holly, debunked the DEQ’s continuing erroneous narrative (see the video below) that fracking’s been going on in Michigan for 60 years and that there have been 12,000 wells and no cases of contaminations in Michigan. Audiences attending challenged the DEQ speakers who presented inaccurate information. For the DEQ/Curry point/counterpoint, see this video by Ferndale 115.

 

 

Dr. Christopher Grobbel also spoke to groups around the state, sharing his specialized knowledge of the actual contamination record of Michigan’s oil and gas industry. Grobbel once worked for the DEQ compiling its list of contaminated sites. He has since worked on the cleanups and as an expert witness in numerous lawsuits brought by landowners who have had oil/gas spills and contaminations on their property. Grobbel points out that since 1995, the DEQ no longer keeps track of contaminations publicly, making it difficult for the public to know the record except through expensive Freedom of Information Act requests or lawsuits.  Grobbel’s entire presentation is available HERE.

Richard Heinberg's 2013 book "Snake Oil: How Fracking's False Promise of Plenty Imperils Our Future" mentions Ban Michigan Fracking as part of the "massive grassroots backlash against fracking."

As if miffed that public opinion was turning against them at the forums and presentations, the DEQ’s Office of Oil, Gas and Minerals and the Michigan Department of Natural Resources (the department responsible for leasing state-owned mineral rights on both public and private land) held public meetings of their own in Troy, Muskegon, and Traverse City. The tactic backfired. Audiences now savvy to the recognizable misleading claims called the DEQ on them, holding up placards stating “B.S.” every time state officials uttered one at the Musekgon meeting. In Traverse City, Ban Michigan Fracking submitted 11 written questions. The speakers refused to answer any. A contingent of armed conservation officers monitored the audiences inside at each, and police officers were present outside the meeting locations.

 

Occupy Muskegon caught this moment at the DEQ/DNR meeting in Muskegon when the audience burst into laughter when the Oil, Gas and Minerals staffer stated that companies are required to clean up contaminations. Note the heavy armed guard presence behind the speakers:

Indeed during this time, public opinion was turning against the frackers. Pew Research Center issued findings from its survey, conducted in March and September 2013, that more Americans (49%) oppose increased use of fracking than favor it (44%). “Since March, opposition to increased fracking has grown significantly across most regions and demographic groups,” the Center reported. Back in March, support for fracking exceeded opposition by 10 points (48 to 38%). The biggest shift in public opinion occurred in the Midwest where those opposed to fracking grew 16 points from 32% to 48%. DEQ Office of Oil, Gas and Minerals was feeling the heat of that shift.

In May the DNR held one of its two annual auctions of state-owned oil and gas lease rights, leasing out 37,000+ acres in 17 Michigan counties. Activists attended in protest. While none were arrested, some were escorted out of the auction by conservation officers while the officers were asked “What are you conserving?” 

As fracking continued, the waste and water issues mounted. In June, local residents in Kalkaska living near frack wells experienced water well problems. Corinne Turner described the plight of these families and their lack of good water, Halliburton’s frac sand blowing through the air, covering everything in sight, and high noise levels in an insightful letter to the editor, Viewpoint: Fracking in Kalkaska should serve as warning for southwest Michigan. Encana ran out of water on the job site at the Westerman well and turned to local communities to purchase water.

Then a contamination incident happened, and industry was caught in the act. Encana’s subcontractor Team Services applied three tanker trucks full of oil and gas industrial waste onto roads in Benzie County in July, witnessed by a local organic farmer who happens to be a former oil and gas industry worker, familiar with the smell of petroleum waste. His nostrils burned even a day later. After the residents informed the county road commission and obtained test results, and we made some calls to DEQ, Ban Michigan Fracking broke the news.

Fewins Road still showing the darkened contaminated areas from the dumping of toxic "brine" in Benzie County in 2013. Photo courtesy of Bryan Black.

The tests showed benzene levels were 28 times higher, and toluene 1,000 times higher than legal limits. DEQ’s “investigator” was first told of the fact that he had an investigation to do by BMF. Days later, the local newspaper, Traverse City Record-Eagle was all over it and followed the story, eventually publishing an editorial chastising the DEQ. Team Services was told by DEQ to do better and tell the agency what they did. The company was not fined.

Shortly thereafter, Encana was cited, but not fined, for spilling 300 to 400 gallons of frack fluid at a well site in a separate incident. That slap on the wrist was front page news in Traverse City.

In fall 2013, a new horizontal frack well (Sherwood) was approved and drilled near Fowlerville in Livingston County, only 30 miles from Lansing, the state capitol, shaking things up further for residents in the more populated southern counties of Michigan.

Sherwood well in Livingston County. Photo courtesy of Paul Kato.

New local groups formed in 2013, such as Don’t Frack West Michigan in the Muskegon area, Manistee Water Guardians, and Fowlerville Fracking. Residents in Lenawee County follow the oil and gas industry’s drilling operations in Adrian on a blog as do Washtenaw county residents in Saline and Lodi.  The conventional oil wells (over 40) in the Irish Hills in Jackson and Lenawee Counties, where concerned residents held many meetings in 2012, may become another high-volume frack area once the industry goes after the Collingwood/Utical shale under the formations currently being drilled. Recently two Class II injection wells were approved by EPA in Norvell Township, Jackson County to handle all the wastes produced by West Bay, despite local opposition.

Fowlerville area residents are up in arms about the Sherwood well. They held numerous informational meetings, demanding details from the DEQ and elected officials, and are gathering more interest among neighboring communities on how to prevent the next ones that are sure to come.

Livingston County residents protested the Sherwood horizontal frack well in November in downtown Fowlerville. Photo courtesy of Andrea Rude McKenzie

In the strongest local action by a Michigan municipality to date, West Bloomfield Township extended its one-year moratorium on all drilling operations for another year into February 2014.  Several communities passed resolutions (which are not binding ordinances) calling for statewide and national bans on fracking.  Still others are seeking a regulatory route to restrict some aspects of the horizontal fracking industry, working with the organization FLOW, which do not ban or otherwise prohibit the drilling and fracking operations. Cannon Township–in Kent County where 10% of the land is leased to the oil and gas industry–which has the same legal counsel as Encana (Mika Meyers Beckett & Jones), passed a six-month moratorium to regulate activities ancillary to drilling. 

The group Food and Water Watch worked on an ordinance for Ann Arbor and organized a meeting of local organizations. The Michigan Sierra Club held informational meetings around the state and stayed out of the local ordinance effort. While some of its members worked on the ballot initiative campaign, its leadership remained firmly against a ban and instead worked for regulations on the frack industry, using rhetoric about making the process “safe” and “proper disposal.”

Wastes from horizontal drilling and fracking accumulated throughout 2013 in epic proportions compared to conventional drilling. Like other states, Michigan is full of toxic injection wells. It has 1,460 Class II injection wells used specifically for oil and gas wastes.

One of the many injection wells used to dispose of horizontal frack wastes in Michigan, the Wlosinski #2-27 SWD injection well in Kalkaska County. Photo by LuAnne Kozma.

The millions of gallons of toxic waste that is the water-sand-chemical soup that gets pumped down the frack well partly comes up (for disposal elsewhere) and some of it stays below in the frack well itself, creating a toxic injection well site at each and every horizontal frack wellhead.

From EPA website 1/11/14.

In addition to liquid waste, the drill cuttings and drilling muds used at each frack well site are also toxic wastes. These are disposed of on site in large pits, sometimes dug beneath the water table (for example, see the Schick 1-7 HD well permit, Clare County), solidified on site or trucked off to local landfills such as the Crowl Solid Waste Disposal landfill in Gladwin and the Waters Landfill in Frederic. No testing is done for radioactivity.

Lawsuits started up against the industry, the Michigan Public Service Commission, the Michigan Department of Environmental Quality Office of Oil, Gas and Minerals, and the federal Bureau of Land Management:

  • Ban Michigan Fracking’s Ellis Boal started a case for Crawford county residents in March to stop Encana gathering lines connecting two frack wells to a pipeline. The public service commission denied their claim without considering the environmental consequences and the plaintiffs are appealing.
  • Boal also sued for a Kalkaska resident, to stop 13 huge Encana wells permitted by the DEQ in the state forest. The company was trying to put several wells too close together, possibly inducing interference between the wells. In October, a judge enjoined them, dependent upon the plaintiff submitting an administrative appeal under part 12 of DEQ rules. See: Judge Stops US Record Frack Wells in Michigan
  • A suit for two Gladwin County residents to compel the DEQ to stop importing the “Halliburton loophole” into Michigan law and treat frack wells under the rules for injection wells is pending in the Michigan court of appeals.
  • A couple in Allegan County brought suit against the US Department of Interior and the Bureau of Land Management. claiming that the agency violated the National Environmental Policy Act by failing to prepare an Environmental Impact Statement and using a flawed environmental assessment. The suit seeks to set aside the leasing out of the Allegan State Game Area for gas and oil drilling.
  • Michigan Land, Air, Water Defense, a local group in Barry and Allegan counties, sued in 2012 challenging the state’s Department of Natural Resources’ approval of mineral rights leases in state game areas, and received a judge’s ruling in 2013 dismissing part of the case and transferring the rest to a different judge. 

In general these well-meaning suits try to get some short-term or other results, such as sparing certain places from fracking or temporarily halting operations. But, in the main, they concede the most important point to industry, continued permission to drill and frack.

In response to public concern over Michigan’s fracking and offensives to ban horizontal fracking, the governor got a university behind him. Snyder hailed a blue ribbon committee study to be conducted by the University of Michigan’s Graham Institute. The study’s steering committee consists of gas and oil industry representatives, DEQ Office of Oil, Gas and Minerals staff and two non profit organizations, Michigan Environmental Council and Tip of the Mitt Watershed Council. Both NGO’s are publicly pro-gas, anti-ban (or even moratorium) and state they want “seats at the table” with DEQ. The study is one of those tables. At its March press conference in which the lead investigators stated the study was to gather information to “minimize negative impacts,” it was clear that their efforts would not consider banning fracking, but rather, enable it. In April the U of M held a public presentation it called “Fractopia Town Hall” featuring a speaker from the gas industry-PR group Energy in Depth, an Office of Oil, Gas and Minerals regulator, an engineering professor who led one of the technical reports, and the pro-”regulated fracking” Michigan Environmental Council.

Michigan Chamber of Commerce placed over 70 of these billboards in an attempt to defeat the Committee to Ban Fracking in Michigan's ballot initiative. Photo by LuAnne Kozma.

In addition to this governmental, academic and NGO push-back to the ban fracking movement, the Michigan Chamber of Commerce launched a frontal attack with a political campaign of its own in an attempt to defeat the ballot initiative. Using its already formed ballot question committee called PAC II, the Chamber raised over $427,000 mainly from gas and oil companies for a series of press releases and website aimed at the Committee, calling the ballot proposal “dangerous” and the Committee’s 500 volunteers—and we suppose all the 70,000 voters who signed it–”extremists.” To buttress its view that gas is safe and “environmentally friendly,” the Chamber’s anti-ballot initiative campaign put 70+ billboards around the state.

Michigan residents take ban fracking message to new heights in September over a busy highway overpass:

In the midst of the citizen-led ballot initiative for a legislative ban, Michigan House Democrats rolled out a set of bills in the summer to provide more regulations for the frackers and deflect criticism that they are not doing anything about fracking. The bills do not seek to ban fracking and they did not get out of committee. In the push for “tougher regulations” this is often a ploy by so-called environmental groups who want a “seat at the table” to make deals or “common sense reforms” rather than trying to protect the public from the greater harms of fracking by stopping its practice. Some of the lawmakers promoting the bills also spoke favorably about the gas and oil industry and do not want to interfere with their operations. The bills are:

  • HB 4899 for public hearings and comments for frack permits.
  • HB 4900 for chemical disclosure.
  • HB 4901 for study of fracking impacts.
  • HB 4902 for presumption of fracker liability if chemicals or tracers are found in nearby water.
  • HB 4903 for water withdrawal assessment tool.
  • HB 4904 for county/township regulation of frack wells.
  • HB 4905 for prohibition of frack flowback on roads for dust suppression.
  • HB 4906 for increasing setback requirements to 1000 feet.

In light of the DEQ’s position in the injunction against wells in Kalkaska, HB 4899 is already partially the law.

One of seven Technical Reports by University of Michigan--steered by the gas industry.

The University of Michigan’s study finally came out in September. Its seven technical reports refused to acknowledge the constitutional right that Michigan voters have to ballot initiative when describing what Michiganders can do to make policy or legal decisions on the issue of fracking. The brief mention of the Committee to Ban Fracking in Michigan’s ballot initiative was erroneously referred to by its 2012 effort, not its 2013 legislative initiative, and referenced our website, not the Committee’s. (It was corrected later). Two of the study’s steering committee members donated funds to the Michigan Chamber’s campaign against the ballot initiative. None of them donated money for the ballot initiative. See our earlier story here. We recommend reading the reports with scrutiny.

In October, documentary filmmaker Josh Fox, creator of the films  Gasland and Gasland Part 2, appeared in Royal Oak at the Main Art Theatre for the free screening of honoring the Committee to Ban Fracking’s 70,000 signatures. Fox called the campaign’s accomplishment “incredibly inspiring.” Over 300 people attended.

 

Andrea McKenzie created a short video of the event, below:

Josh Fox in Michigan from Andrea McKenzie on Vimeo.

The DNR held its fall auction in October, leasing out state-owned oil and gas mineral rights to 11,000+ acres in 12 Michigan counties, including Au Sable River’s “Holy Waters.” Alarmed, mainstream groups lobbied the agency. DNR reversed itself, prohibiting drilling from the surface of the “Holy Waters” area but allowing drilling underneath. Michigan Environmental Council lauded the decision, saying some areas are more worthy of being frack-free.

Near the end of the year, the Office of Oil, Gas and Minerals announced new proposed administrative regulations regarding water, monitoring, reporting, and chemicals. Privy to a draft, Sierra Club hailed the new rules as “baby steps in the right direction.” The State’s October announcement omitted mention of changes eliminating requirements for exceptional spacing and interference, and the new ability of frackers to drill and frack first and then force mineral rights holders into a compulsory pool. In November DEQ revealed the language on its website. This means the frackers can build the gallows first, then hold the trial: they can drill and frack, and after the damage is done, force the pooling of the mineral owners, whether they leased their lands to the gas and oil companies, or not.

2014 is shaping up to be a time for  the DEQ Office of Oil, Gas and Minerals and their many enablers to try to pacify opposition and corral Michiganders into accepting more “regulated fracking” while they continue to foster the development of the industry along the most favorable conditions. But the ban fracking movement will grow and raise ever-increasing awareness. Unfortunately, a lot of Michigan residents are going to suffer from the impacts of more Michigan horizontal fracking, the enormous amount of frack wastes it generates, depleted water supplies, and the industrialization of their communities to their health, their environment, their property and their livelihoods until we ban the practice. With 70,000 voters with us for a ban…. we are gaining momentum.

Concerned Michigan residents in Kalkaska protesting the horizontal frack wells in the epicenter of Michigan's fracking boom, October 2013. Photo courtesy of Manistee Water Guardians.

(Updated 1/19/14: Respectmyplanet.org, a new database website emerged with photos of Michigan deep frack sites and data from the DEQ. It withdrew its support for a ban on fracking clarifying that its mission is to ”educate the public about locations of environmental concern and education about  Hydrogen as a clean renewable fuel source.” It states on a video on its website fracking can contaminate water “if not done properly.”

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Live, in Royal Oak: Josh Fox and Gasland II

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Ban Michigan Fracking is pleased to co-host a free screening of the film Gasland Part II, with special guest filmmaker Josh Fox who will join us for the evening for an question and answer session after the showing.

There are no reserve tickets. Please come early and line up outside the theatre. First come, first serve, but Committee to Ban Fracking circulators will have a reserve section up front.

Donations to Committee to Ban Fracking in Michigan, the ballot initiative, will be welcome at the door, and online at: www.letsbanfracking.org.

For more information contact LuAnne Kozma: 231-944-8750

National poll: More Midwesterners opposed to fracking than in favor

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Graph from the Pew Research Center report, September 4-8, 2013.

No wonder the industry is sweating it.

The more people learn about fracking, the more they oppose it. And today, more Americans (49%) oppose increased use of fracking than favor it (44%). That was just one of the findings released by the Pew Research Center, who conducted polls in March 2013 and September 2013. “Since March, opposition to increased fracking has grown significantly across most regions and demographic groups,” the Center reported.  Back in March, support for fracking exceeded opposition by 10 points (48 to 38%).

Biggest increase in opposition to fracking is in the Midwest

The most significant finding to us at Ban Michigan Fracking is that in the Midwest 32 % opposed fracking, and that rose 16 points to now 48% of Midwest people opposing fracking in September 2013, (while 47% favor it). That is a huge shift in public opinion.

On-the-ground activism is making a difference

In the same six-month period, hundreds of volunteers with Committee to Ban Fracking in Michigan have been throughout the state, collecting signatures from Michigan voters on ballot initiative petitions to ban fracking and frack wastes. At all meetings held by the DEQ or DNR, the Committee to Ban Fracking in Michigan petitioners were there, clipboards in hand. At county fairs, farmers markets, art festivals, musical concerts, sporting events, picnics, and parades, the Committee to Ban Fracking has taken the ban message and the direct democracy approach to banning fracking. Word seems to be getting out.